Perilously going above and beyond – Occupier found not liable for injury to employee on its premise
Mar 2016 |
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
The New South Wales Court of Appeal has recently overruled a decision of the New South Wales Supreme Court concerning the liability of an occupier for the injury of a labour hire worker. The case provides a defining insight into the liability of occupiers in a workplace.
Facts
The arrangement
The plaintiff (Mr Gazis) was working as a security guard at the South Sydney Junior Rugby League Club (club). The club contracted Sermacs Australia Pty Ltd (Sermacs) to provide security to the club’s Kingsford premises. Sermacs contracted through a labour hire agreement with the employer of Mr Gazis, MPS Security Pty Ltd (MPS), to provide a licenced security guard.
Mr Gazis was required to be on the first level of the club when cash was removed from the poker machines and transported to the club’s office (office) on large trolleys by employees of the club. Mr Gazis would wait outside the door of the office at all times.
Mr Gazis stated that he understood his duties as a security guard were to assist the club’s staff in transferring the monies from the floor to the office. Despite receiving no direction from the club, Sermacs or MPS, Mr Gazis stated that he moved the trolleys from time to time. There was no evidence tendered to support the assertion that Mr Gazis’ job description involved moving the trolleys.
The incident
On 19 May 2006, Mr Gazis escorted club staff members who were wheeling trolleys of cash to the office. Whilst Mr Gazis was standing outside the office alone, he attempted to grab the handle of an empty trolley. Mr Gazis lost his grip and fell backwards, landing on a smaller trolley behind him.
Mr Gazis commenced proceedings against the club and Sermacs for negligence, and against MPS under the Workers Compensation Act 1987 (NSW).
Before the trial, Mr Gazis settled with Sermacs.
The decision at first instance
The Supreme Court held the club was liable for the injuries of Mr Gazis.1
The court reasoned that despite the club’s management not having any knowledge that Mr Gazis had been moving the trolleys, the employees of the club inside the office ought to have known that Mr Gazis was moving trolleys from time to time. Consequently, the court deemed the club to have the inferred knowledge of its employees.2
The court held that the club, as occupier of the premise, failed to provide direction to Mr Gazis to not move the trolleys.3 Further, the court commented the club failed to take reasonable steps to prevent a person in the position of Mr Gazis not being subject to a foreseeable risk of harm, relying on the High Court authority Thompson v Woolworths.4 Thompson v Woolworths was a case where it was found a contractor was required to move bins in order to complete a delivery run and Woolworths was found to have knowledge the contractor was moving the bins because there was no alternate method of effecting a delivery.
The Supreme Court also found that MPS, as the employer of Mr Gazis, had a non-delegable duty of care to check the system of work which Mr Gazis was required to undertake.5 The court commented that MPS took no steps to ensure the conditions under which Mr Gazis, their employee, were safe.6 Consequently, MPS was also found liable.
Issues
The matter was appealed by the club and MPS to the New South Wales Court of Appeal.
Court of Appeal decision
The club
Despite the Court of Appeal holding that the club owed Mr Gazis a duty of care as the occupier of the premise,7 Mr Gazis ultimately failed on the issue of breach. He failed to establish his employment duties as a security guard extended to moving the trolleys and that the club knew or ought to have known he was moving the trolleys, and then take reasonable precautions.
The court held the trial judge incorrectly founded liability on the basis of the club ‘having the knowledge of every employee’, especially in relation to the actions of independent contractors who work on the premise.8 Consequently, the club was not liable because it did not have the knowledge that Mr Gazis was moving the trolleys. In absence of the club having knowledge that Mr Gazis was moving trolleys, the court found that the club was not under an obligation to instruct him not to move the trolleys.
Distinguishing Thompson v Woolworths
The Court of Appeal distinguished the facts of this case to the High Court authority Thompson v Woolworths which the Supreme Court relied upon. In this circumstance, there was no finding of actual knowledge of management of the club that Mr Gazis’ was moving trolleys as opposed to the facts of Thompson v Woolworths.9 Furthermore, there was no practical necessity for Mr Gazis to move the trolleys. Instead, he adopted this course of action voluntarily and agreed that no one had asked him to do it.10
MPS
The Court of Appeal held the Supreme Court incorrectly concluded that MPS was liable. Whilst MPS breached its duty to Mr Gazis by failing to investigate his working environment, this was not causative of the loss. The court held a reasonable inspection would not have identified such a risk.
Commentary
The Court of Appeal provided a common sense approach to the liability of the club as an occupier. The Court of Appeal found that there was no evidence to suggest the club knew of Mr Gazis’ additional activities. Consequently, the club was not under an obligation to provide a direction for Mr Gazis to stop doing these actions. This decision serves to distinguish the High Court authority of Thompson v Woolworths, highlighting that in this circumstance, there was not a practical necessity for Mr Gazis to move the trolleys, nor was he asked.
Further, the Court of Appeal highlighted the non-delegable duty of the employer is not framed as a blanket obligation to ensure safety at work of an employee. However, the duty is defined as an obligation to take reasonable care to avoid exposing a worker to an unnecessary risk of injury.
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1 Ross Gazis v Gual Pty Ltd Limited – Formerly known as Sermacs Australia Pty Ltd (under external administration and/or controller appointed) [2014] NSWSC 1617.
2 Ibid 70.
3 Ibid 103.
4 (2005) 221 CLR 234.
5 Ross Gazis v Gual Pty Ltd Limited – Formerly known as Sermacs Australia Pty Ltd (under external administration and/or controller appointed) [2014] NSWSC 1617, 78.
6 Ibid 150.
7 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, 73.
8 Ibid 112.
9 Ibid 81
10 Ibid 82.
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